In 2010, Congress enacted a law, dubbed the Fair Sentencing Act, that made the mandatory- minimum prison sentences for crack-cocaine offenses more lenient than they had been. Specifically, the Fair Sentencing Act reduced the disparity between crack-cocaine minimum sentences and powder-cocaine minimum sentences from 100-to-1 to 18-to-1. Last year, in Dorsey v. United States, the Supreme Court ruled by a 5-to-4 vote that the more lenient minimum sentences apply not only to offenders who committed a crack-cocaine crime after the effective date of the Fair Sentencing Act but also to offenders who committed the crime before the effective date but who were sentenced after that date.

Today, in an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman.

The majority recognizes that “there is no equal protection violation without discriminatory intent,” and it acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But it contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination. In its words:

A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

Under this illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.